Sarah B. Galeli
Loyola University Chicago School of Law, J.D. 2020
In August, the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) made an additional focus in its Work Plan for the oversight of nursing facility staffing levels. These changes were made in the light of backlash from a July 2018 news article which reported that nearly 1,400 nursing homes had fewer qualified staff on duty than they were required or failed altogether to provide reliable staffing information to the Centers for Medicare and Medicaid Services (“CMS”).
Reason Behind Staffing Requirements
Nursing home staffing practices gained negative attention prior to the passage of the Affordable Care Act (“ACA”) and have remained a cause of concern. As a Kaiser Family Foundation article pointed out in April 2018, over the last twenty-five years many research studies have shown a relationship between higher staffing levels and better outcomes for patients. Minimum staffing requirements are frequently a topic of regulatory oversight as the quality of care problems persist within the nursing home industry.
Minimum staffing requirements for both registered nurses and licensed practical nurses were created as a result of the Omnibus Budget Reform Act of 1987. Medicare and Medicaid skilled nursing facilities are required to have a registered nurse as the director of nursing; a registered nurse on duty at least 8 hours a day, 7 days a week; and a licensed nurse (registered nurse or licensed practical nurse) on duty the rest of the time. Ever since staffing levels began being reported, nursing facilities were expected to self-report staffing levels, which left unverified reports as the only source of staffing information.
The ACA required that CMS establish a national system to collect and publish payroll staffing records. This requirement created a source of more reliable data from nursing facilities, leaving nursing homes less able to artificially inflate staffing numbers. The ACA requirements also created a necessity for nursing facilities to collect and review their own payroll staffing records and commit to more effective auditing of staffing levels.
Payroll Staffing Records
As required by the ACA, CMS created Payroll-Based Journal(“PBJ”) a system for nursing facilities to submit staffing and census information. CMS then verifies and publishes the data and enforces compliance of the minimum staffing requirements. This data contains the daily count of nursing staff, number of hours each staff member worked, the number of residents each day, and count of residents who are Medicaid, Medicare, or another payment method in each nursing facility. The enforcement measures were relatively unknown until recently when underperforming facilities or those that did not report with payroll staffing records received lowered ratings on CMS’s nursing home compare website.
CMS began publishing the payroll staffing records collected using the PBJ in October 2017. In July 2018, CMS updated 1,387 of the nation’s 15,616 skilled nursing facilities ratings to one star out of a possible five. CMS said the ratings were given to facilities that either lacked a registered nurse for a “high number of days”, provided data that couldn’t be verified, or didn’t provide any data at all. The rating changes were, in part, an enforcement provision in the ACA to ensure the most accurate rating possible on the nursing home compare website for potential nursing facility residents and their families.
Compliance Objectives from Work Plan
The OIG Work Plan is updated throughout the year to pinpoint areas where industry-wide compliance could be improved. In August 2018, the OIG announced a Work Plan that initiated the analysis of PBJ data to evaluate compliance of required minimum staffing levels. The OIG will examine the data provided through the PBJ system, the enforcement measures to improve PBJ data accuracy, and incentives for exceeding the minimum staffing requirements. This Work Plan will be in place, collecting and evaluating data until 2020, when the OIG plan to release a report of its findings.
Nursing facilities should take the OIG’s focus on required staffing levels as an opportunity to strengthen their compliance programs and improve patient outcomes. Strong compliance programs should monitor their staffing data to ensure there is a registered nurse on duty at least 8 hours per day, 7 days per week and a licensed nurse on duty the remainder of the time. Compliance officers for nursing facilities should encourage their facility to have a registered nurse as the director of nursing and to utilize the PBJ to provide the required data. With OIG analyzing staffing and patient outcomes, reaching and, if possible, exceeding the minimum required staffing levels of nursing staff should be the goal of compliance programs in nursing facilities. Facilities that attain these goals will not only keep their CMS ratings from being lowered on the nursing home compare website but will avoid further scrutiny as a result of the new focus in the OIG Work Plan.